Petitioner Devendra Singh ("petitioner" or "Singh"), an inmate at the Bernard B. Kerik Complex, brings this Article 78 proceeding and seeks a judgment vacating his placement in Close Custody Housing and directing that he be placed back in the prison's general population. Respondents oppose.

I.Background

Petitioner was incarcerated pursuant to an order of the Supreme Court, Queens County, Criminal Term on December 2, 2005. On August 9, 2006, he was placed in Close Custody Housing ("CCH"). CCH is a form of protective custody where an inmate is placed in solitary confinement for 23 hours a day. An inmate is not permitted to have contact with other inmates at any point in time during their placement in CCH. The criteria used by prison officials for making a CCH determination are based primarily upon the safety and protection of the inmate as well as the safety and protection of the other inmates and corrections staff. Some of the factors that are considered include the nature and notoriety of the inmates crime, Intelligence Unit information and the inmate's vulnerability.

Singh was designated for CCH placement based upon Intelligence Unit ("IU") information obtained by undercover prison officials. In their intelligence report, the IU officials determined that based upon his gang influence and ability to orchestrate violence, Singh posed a threat to the safety and security of the facility. Specifically, the report states that:

[b]ased on intel gathered from the Intelligence Unit, inmate Singh yields an inordinate amount of influence within the Bloods Gang, both within the penal system and society. Inmate Singh utilized his influence to persuade a major rap artist ["Pappoose or Papous"], who is Blood affiliated, to perform a concert at the facility. The Intelligence Unit is currently reaching out to other authorities in an effort to discern inmate Singh's full range of influence. It is the finding of this unit that inmate Singh will be retained in Closed [*2]Custody pending the finalization of the investigation.

Pursuant to prison regulations, petitioner was served with a "Notice of Right to Due Process Hearing Close Custody/Protective Custody Housing Form" ("the Due Process Form") when he was placed in CCH on August 9, 2006. This form details the due process rights of an inmate designated for CCH custody. Section B entitled "Service of Notice" states that an inmate is entitled to a Close Custody Due Process Hearing ("Due Process Hearing") by an Adjudication Captain within three business days from the time the inmate is served with notice. At a Due Process Hearing, among other entitlements, the inmate has the right to call both inmate and staff witnesses, the right to present evidence and the right to a written determination report following the hearing.

Singh's Due Process Hearing was timely held on August 14, 2006. At the hearing, the Adjudication Captain recommended that Singh remain in CCH based upon his prior arrests, gang influence, the ongoing IU investigation and his ability to orchestrate violence inside of the prison. II.Conclusions of Law

A court reviewing an Article 78 proceeding must judge the propriety of an administrative action solely on the reasons cited by the administration. See Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 (1991). Such an action must be upheld unless it "shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law." See Featherstone v. Franco, 95 NY2d 550, 554 (2000). CPLR section 7803 states that the following questions may be raised in an Article 78 proceeding: (1) "Whether a determination was made in violation of lawful procedure, was effected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed."

At a Department of Corrections disciplinary hearing, an inmate is entitled to call witnesses on his behalf unless the hearing officer determines that the testimony is immaterial, redundant or would jeopardize institutional safety or correctional goals. 7 NYCRR § 253.5(a); Henderson v. New York City Dep't. of Corrections, 274 AD2d 328 (1st Dept 2000). The inmate may request a witness by informing the hearing officer either before or during the hearing. 7 NYCRR § 253.5(c). If the inmate is denied permission to call a witness, the hearing officer shall issue a written statement to the inmate listing the reasons for the denial including any specific threat there is to the safety of the facility. 7 NYCRR § 253.5(a); Henderson, 274 AD2d at 328. "Where the Department of Correctional Services fails to comply with its own regulations in arriving at an administrative determination, that determination cannot stand." Peralta v. Artuz, 272 AD2d 330, 331 (2nd Dept 2000) quoting Rollison v. Scully, 181 AD2d 734 (2nd Dept 1992); see also Garcia v. LeFevre, 64 NY2d 1001 (1985).

Here, respondents violated their own regulations by not providing Singh with a written statement as to why he was denied the right to call witnesses at his Due Process Hearing. Respondents argue that when they initially served Singh with the Due Process Form on August 9, [*3]2006, and also during an interview prior to his hearing on August 11, 2006, Singh did not request any witnesses to be present at his hearing. Accordingly, respondents claim that they afforded Singh all of his procedural due process rights. Singh, however, claims he made an oral request to call witnesses at his Due Process Hearing and that his procedural due process rights were violated when the hearing officer did not provide a written report indicating the reasons why he was denied this opportunity. In their response papers, respondents do not address Singh's claim that he requested witnesses during his hearing. Therefore, this uncontradicted fact made by petitioner is deemed admitted. See Reisman v. Codd, 54 AD2d 878 (1st Dept 1976) (Article 78 proceeding takes on same character as a motion for summary judgment); Tortorello v. Carlin, 260 AD2d 210 (1st Dept 1999) (uncontradicted facts are deemed admitted).

There is nothing in the record to suggest why the hearing officer denied petitioner's request for witnesses at his Due Process Hearing. Prison officials have the burden of proving that there is a valid reason for precluding a witness from testifying. McDermott v. Scully, 145 AD2d 421, 422 (2nd Dept 1988). Here, since the hearing officer did not provide Singh with a written statement as to why he was precluded from having any witnesses testify at his Due Process Hearing, respondents violated their own rules and regulations and thus acted in an arbitrary and capricious manner. Accordingly, it is

ORDERED and ADJUDGED that the petition of Devendra Singh is granted to the extent that the determination of respondents dated August 14, 2006, directing that petitioner was to remain in Close Custody Housing is annulled, without costs, and the respondents are directed to expunge from petitioner's record all references to his initial Close Custody Due Process Hearing on August 14, 2006, and a new Close Custody Housing Due Process Hearing is to take place within 7 days of the date of this order; and it is further

ORDERED that petitioner is to remain in Close Custody Housing pending the outcome of this proceeding; and it is further

ORDERED that this matter is remitted to the Commissioner of Correctional Services for further proceedings not inconsistent with this court's decision.

ENTER

DATE: September 18, 2007___________________________________

New York, NY J.S.C.